In re N.S.

Supreme Court of West Virginia

May 14, 2018

In re N.S., H.S., B.S., A.S., and J.S.

Barbour County 17-JA-31, 32, 33, 34, and 38

MEMORANDUM DECISION

Petitioner
Father T.S., by counsel Keith Skeen, appeals the Circuit
Court of Barbour County's December 11, 2017, order
terminating his parental rights to N.S., H.S., B.S., A.S.,
and J.S.[1] The West Virginia Department of Health and
Human Resources ("DHHR"), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit
court's order and a supplemental appendix. The guardian
ad litem ("guardian"), Terri L. Tichenor, filed a
response on behalf of the children in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court erred in terminating his parental rights
without imposing a less-restrictive alternative, and in
terminating his parental rights without due process.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

The
DHHR filed a petition in May of 2017 alleging that petitioner
perpetrated multiple acts of domestic violence against the
mother in the presence of the children. The DHHR alleged an
extensive history of domestic violence and DHHR intervention
beginning in 2009. The DHHR further alleged that the children
were exhibiting aggressive behaviors and that those behaviors
were a product of their environment. The circuit court
ordered the removal of the children.

Later
in May of 2017, the circuit court held a preliminary hearing.
Petitioner, who was incarcerated due to his violation of bond
conditions and a domestic violence protective order
("DVPO"), did not appear, but was represented by
counsel. The mother testified that the domestic violence
began when petitioner began abusing methamphetamine,
prescription pills, and alcohol. The mother testified that
petitioner struck her multiple times, with his fists and with
objects, in the presence of the children, but denied that
petitioner had ever been aggressive towards the children. The
mother testified that the violence has resulted in "a
few" DVPOs and in law enforcement intervention. The
mother testified to an incident in which petitioner
threatened to kill one or more of the children, which caused
their schools to go on lockdown to ensure the safety of their
children and others. The school attendance director testified
that petitioner was placed upon the "predator" list
and barred from entering any school property following those
threats. The children's mother denied having contact with
petitioner since the most recent DVPO was issued, but
described a recent incident where petitioner passed her on
the street and threatened to slit her and her boyfriend's
throats. The circuit court found that the children were in
imminent danger of further abuse or neglect and that their
continuation in the home of the mother was contrary to their
welfare.

Petitioner
attended the adjudicatory hearing in July of 2017, with
counsel. The circuit court took testimony from the mother
that was substantially similar to the testimony produced at
the preliminary hearing and took judicial notice of the
mother's prior testimony along with various criminal and
family court files. The circuit court noted the following:
petitioner was previously convicted of three domestic battery
charges and was granted alternative sentencing in the form of
community corrections for the most recent charge in September
of 2016; In May of 2017, petitioner appeared at the community
corrections office and blamed the DHHR intervention with the
children on the mother; petitioner then threatened to
"slit someone's throat" and that, if he found
the mother's boyfriend, he would "shoot him and then
himself;" petitioner stated that he had firearms buried
on his property; petitioner was involuntarily committed for
mental health treatment that day; and petitioner's
community corrections sentence was also revoked which
resulted in his incarceration. The circuit court found that
petitioner, despite entering a guilty plea in his criminal
case, continued his threats of violence against the mother.
Ultimately, the circuit court concluded that petitioner was
an abusing parent and that the infant children were abused
children. The mother was granted an improvement period and
petitioner's case was set for a dispositional
hearing.[2]

In
October of 2017, petitioner was incarcerated and did not
attend the dispositional hearing, but was represented by
counsel. Petitioner moved for a post-dispositional
improvement period, which both the DHHR and the guardian
opposed. Counsel for petitioner proffered that he would be
granted parole in December of 2017 and would then be able to
participate in an improvement period. The circuit court noted
petitioner's testimony in the most recent criminal case
that he "experiences anger so severe that he has
'blackouts' and does not remember his
actions[.]" Further, as evidenced by "the public
meltdown" in May of 2017, the circuit court found that
petitioner was unable to correct his violence towards his
family even while under the supervision of community
corrections. Ultimately, the circuit court found that
petitioner was a danger to the infant children and there was
no likelihood that he could correct the conditions of abuse
that led to the filing of the petition. Accordingly, the
circuit court denied petitioner's motion for a
post-dispositional improvement period and terminated
petitioner's parental rights in its December 11, 2017,
"Order Following Disposition Hearing." Petitioner
now appeals that order.[3]

The Court has previously established the following standard
of review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

On
appeal, petitioner argues that the circuit court erred in
terminating his parental rights without first granting him an
improvement period. Petitioner asserts he should have been
given an opportunity to participate in services. We disagree.
The decision to grant or deny an improvement period rests in
the sound discretion of the circuit court. See In re
M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015)
("West Virginia law allows the circuit court discretion
in deciding whether to grant a parent an improvement
period"); Syl. Pt. 6, in part, In re Katie S.,
198 W.Va. 79, 479 S.E.2d 589 (1996) ("It is within the
court's discretion to grant an improvement period within
the applicable statutory requirements"). We have also
held that a parent's "entitlement to an improvement
period is conditioned upon the ability of the [parent] to
demonstrate 'by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement
period . . . .'" In re Charity H., 215
W.Va. 208, 215, 599 S.E.2d 631, 638 (2004). Further, the
circuit court has discretion to deny an improvement period
when no improvement is likely. In re Tonjia M., 212
W.Va. 443, 448, 573 S.E.2d 354, 359 (2002).

The
circuit court did not err in denying petitioner's motion
for a post-dispositional improvement period because it was
unlikely petitioner would make any improvement. Petitioner
was participating in community corrections as an alternative
sentence for a third-offense domestic battery conviction
before the petition was filed. Petitioner's immediate
response to the petition was a "public meltdown, "
including threats against the children's mother and her
boyfriend that necessitated involuntarily commitment of
petitioner and resulted in a revocation of his alternative
sentence. Apparently, petitioner made these violent, detailed
statements in the community corrections office. Petitioner
was under close supervision with obvious consequences for
further violent acts but made no change from the pattern of
domestic violence detailed in the mother's testimony.
Further, petitioner took no action to remedy his violent
tendencies. Petitioner argues that the DHHR did not provide
services to remedy the conditions of abuse. However, the
circuit court found that the DHHR did make reasonable efforts
to achieve permanency in both its adjudicatory and
dispositional orders. Further, the circuit court found that
the continual domestic violence against the mother in the
presence of the children was clear and convincing evidence of
chronic abuse by the petitioner. West Virginia Code §
49-4-604(b)(7)(A) provides that the DHHR is not required to
make reasonable efforts to preserve the family if the circuit
court determines that "[t]he parent has subjected the
child, another child of the parent, or any other child . . .
to . . . chronic abuse." As such, it is clear that the
DHHR was absolved of its statutory duty to make such efforts,
despite the fact it nonetheless chose to do the same.
Accordingly, we find that petitioner is not entitled to
relief on this issue. The circuit court has discretion in its
decision to grant an improvement period, and we find no abuse
of discretion in this case.

The
same evidence supports the circuit court's termination of
petitioner's parental rights. West Virginia Code §
49-4-604(b)(6) provides that, upon findings that "there
is no reasonable likelihood that the conditions of neglect or
abuse can be substantially corrected in the near future and,
when necessary for the welfare of the [children], " the
circuit may terminate the parental rights of an abusing
parent. We have previously held that "[c]ourts are not
required to exhaust every speculative possibility of parental
improvement . . . where it appears that the welfare of the
child will be seriously threatened . . . ." Cecil
T., 228 W.Va. at 91, 717 S.E.2d at 875 (quoting Syl. Pt.
1, in part, In re R.J.M.,164 W.Va. 496, 266 S.E.2d
114 (1980)). The circuit court correctly found that there was
no reasonable likelihood that the conditions of neglect or
abuse could be corrected in the near future because
petitioner could not correct the conditions under the close
supervision of his alternative sentence. Petitioner continued
to make threats and pose a danger to the children's
mother even while in the community corrections office.
Additionally, the circuit court correctly found that it was
necessary for the welfare of the children to terminate
petitioner's parental rights. Petitioner's past
actions included threats against one or more of the children.
Petitioner's unpredictable behavior continued to threaten
the children and he made no effort to change his behavior.
Accordingly, we find no error in the circuit court's
termination of petitioner's parental rights.

Petitioner&#39;s final argument is that the circuit court
erred and denied him due process by holding hearings in his
absence. Specifically, petitioner argues that the circuit
court should have considered the multiple factor test set
forth in In re Stephen Tyler R., 213 W.Va. 725, 584
S.E.2d 581 (2003), and concluded that petitioner should have
been transported to these hearings. However, we have held
that an incarcerated parent who is a respondent to an abuse
and neglect proceeding must inform the circuit court in which
such case is pending that he/she is incarcerated and
request the court&#39;s permission to attend the
hearing(s) scheduled therein. Once the circuit court has
been so notified, by the respondent parent ...

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